Jones v. State, 62424

• Decision Date: 29 March 1984
• Docket Number: No. 62424,62424
• Citation: 449 So.2d 253
• Parties: Ronnie Lee JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 253

449 So.2d 253

Ronnie Lee JONES, Appellant, v. STATE of Florida, Appellee.

No. 62424.

Supreme Court of Florida.

March 29, 1984.

Rehearing Denied May 23, 1984.

Theodore Klein and Joseph H. Serota of Fine, Jacobson, Block, Klein, Colan & Simon, Miami, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., Miami, for appellee.

SHAW, Justice.

This is an appeal by Ronnie Lee Jones (hereinafter defendant) from his convictions on three counts of first-degree murder, two counts of attempted first-degree murder, burglary, robbery, carrying a concealed firearm, and unlawful possession of a firearm while engaged in a felony. Defendant was sentenced to death following a jury recommendation that death be imposed. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and the sentences.

On the late night of July 1 and early morning of July 2, 1980, seven men were at the home of John Uptgrow. About midnight, defendant and an unidentified male companion were admitted to the home by Uptgrow. Once inside, defendant removed a concealed firearm from under his shirt and asked Uptgrow for shells. Uptgrow asked why the shells were needed since the firearm was loaded. Defendant asked to speak to Uptgrow privately and the two men went to a bedroom with the defendant walking behind Uptgrow. Within seconds, a gunshot was heard. Uptgrow's body was later found in the bedroom with a gunshot wound to the head consistent with a shot fired from the right rear.

An occupant of the home, Fleming, testified that he was in the bathroom when the first shot was heard. When he started to leave the bathroom, he saw a gunman approaching from the bedroom. The gunman wore clothes similar to those worn by defendant and unlike those worn by his unidentified companion. Fleming retreated into the bathroom and closed the door, whereupon a series of shots were fired through the door into the bathroom. Fleming remained in the bathroom, uninjured, for a period of time until he tried to flee and was shot in the elbow by the gunman; he feigned death and survived.

Two other witnesses, Lynch and McDonald, identified defendant as the man who entered the home, produced a loaded gun, asked for shells, and went to the bedroom with Uptgrow to talk privately. Before the gunshot, defendant's companion was sitting on a couch in the living room; after the shot the companion rose and went toward the bedroom with no visible weapon. After the first shot, another occupant, Hamilton, was seen going to the front door where he turned and said, "Don't do that." Hamilton's body was later found near the door with gunshot wounds. Lynch and McDonald fled through a back door and hid nearby until the police arrived.

Another occupant, Hill, had been asleep on a couch in the living room. His body, with gunshot wounds, was found still on the couch. Another occupant, Smith, was found seriously wounded by a gunshot to the head but could not testify as to the occurrence.

Lynch and McDonald testified that Uptgrow had in his possession a distinctive black pouch containing a large sum of money and that he was wearing gold jewelry. The pouch with the money and the gold jewelry were missing when Uptgrow's body was found. The empty pouch was discovered weeks later hidden in a room which had been occupied by defendant.

Defendant was arrested in the early morning of July 3, 1980, as he was awakening. A distinctive handgun was found under his pillow. Lynch and McDonald testified that the handgun looked like the gun defendant had on the night of the murders.

A fingerprint expert testified that four of defendant's fingerprints were found in the Uptgrow home.

Defendant raises six issues which he argues constitute reversible error. He first urges that the trial court failed to conduct a proper inquiry regarding a waiver of counsel and required him to proceed pro se when he had not effectively waived legal representation. The record shows that a public defender, Zenobi, was appointed on July 17, 1980, at defendant's request and that Zenobi continued as a specially appointed counsel at the request of defendant after Zenobi left the public defender's office in August, 1980. Zenobi was actively engaged in discovery and pretrial motions through March, 1981. Starting in late May, 1981, defendant began filing a series of pro se motions, the contents of which indicated that he was personally assuming direction of his defense. During a series of hearings from May through September, 1981, defendant discharged Zenobi and refused to accept other court-appointed counsel. Instead, defendant requested appointment of counsel of his choice or the provision of $25,000 to obtain counsel. During these hearings, the trial court correctly instructed defendant that he was not entitled to appointed counsel of his choice and that his legal choices were to accept court-appointed counsel, obtain private counsel using his own resources, or represent himself. This impasse culminated at a hearing on September 1, 1981, when trial was set for October 19, 1981. At this hearing, defendant declared he would represent himself but desired the assistance of appointed standby counsel, Kershaw. Defendant advised the court that he would be consulting Kershaw prior to the trial date to obtain assistance in preparing and conducting his defense. The court inquired as to defendant's competence to represent himself and advised defendant that he would be better served if he allowed Kershaw to act as his counsel and to conduct his defense. The court further advised defendant that it was very difficult to conduct a defense, that he was giving up certain rights and would not be able to demand a new trial because of his own ineffectiveness. Nevertheless, defendant insisted, and the trial court having satisfied itself that defendant was competent to exercise his right of self-representation, acquiesced in his decision. This resolution was only temporary. On October 19, 1981, Kershaw appeared before the court to argue that the court had made a Faretta inquiry (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), and determined that defendant could adequately represent himself by proceeding pro se and that he should be permitted to withdraw as standby counsel because defendant had refused to talk to him or to make the case file available, and was adamant that he did not want Kershaw associated with him. Kershaw's argument was supported by defendant who stated, "I don't want Mr. Kershaw around me during my trial." The court refused to permit Kershaw to withdraw as standby counsel at that time despite Kershaw's insistence that he was unable and unprepared to represent the defendant due to defendant's uncooperative attitude, but did appoint attorney Wilson to act as standby counsel before the trial commenced the following day.

We are satisfied that defendant by his persistence in demanding counsel of his choice waived his right to appointed counsel and that the court conducted an appropriate inquiry to satisfy itself that defendant was competent to exercise his right to self-representation and was determined to do so. Faretta holds that the sixth amendment grants an accused the right to self-representation. The record affirmatively shows that defendant was literate, competent, and understanding, that he was voluntarily exercising his informed free will, and that the court made it explicitly clear that it thought defendant was making a mistake in refusing to accept the appointment of counsel.

Defendant urges that during the guilt phase of his trial he unequivocally requested appointment of Zenobi, Kershaw, or other counsel and that the trial court erred in not appointing counsel at that time. Defendant's argument is without merit. This request occurred on the second day of trial, after the jury was selected and after the state had commenced its case. The request for counsel was accompanied by a motion for a continuance. The trial court properly advised defendant that he had previously fired court appointed counsel, refused other counsel, and had chosen to exercise his constitutional right to represent himself after a proper inquiry. The court properly exercised its discretion in refusing to permit the defendant to delay the proceedings further by withdrawing from that choice during the course of the trial. As we make clear below, neither the exercise of the right to self-representation nor to appointed counsel may be used as a device to abuse the dignity of the court or to frustrate orderly proceedings.

In support of his argument that the trial court did not conduct a proper inquiry into waiver of counsel, defendant urges that the appointment of standby counsel to observe the trial was ineffectual because standby counsel refused to offer advice when requested to do so. The record clearly shows that the court was faced with an obstreperous defendant who might well attempt to disrupt and obstruct the trial proceedings. Under these circumstances, it was prudent of the court to appoint standby counsel, even over defendant's objection, to observe the trial in order to be prepared, as well as possible, to represent defendant in the event it became necessary to restrict or terminate self-representation by shackling and gagging defendant or by removing him from the courtroom. We do not view the appointment of standby counsel over defendant's objection as interposing counsel between defendant and his sixth amendment right to self-representation. At one point during cross-examination of a witness, when defendant appeared to be opening up a subject which it was in his interest to avoid, the trial court on its own volition suggested that defendant consult with standby counsel. Attorney Wilson, not being familiar with the case or the purpose of the cross-examination, declined to advise defendant. This was understandable because defendant had refused to...